'Homeland' real-life character, Penn. Sharia Judge Mark Martin, served several tours of duty in the Middle East. The Sharia Judge carries the Koran to court and may be a technical advisor to Homeland.

summarily dismissed charges against a Muslim immigrant who allegedly attacked an atheist activist parading in a Zombie Mohamed costume. For some reason, Zombie Mohamed’s pal, Pope Zombie, was not attacked.

But the most disturbing attack in the case was inflicted on the First Amendment by “Judge” Mark W. Martin, who launched into a six-minute tirade against the alleged victim for having the temerity to exercise his right to free speech and expression. Now it turns out, the “judge” isn’t even a lawyer and didn’t graduate law school. Apparently a four-week course suffices in Pennsylvania to become a magisterial district judge.

I called Judge Mark W. Martin at the telephone number provided here planning a serious First Amendment exercise workout myself, only to learn in a recorded message Monday morning that the court room had to be relocated to a more secure location on account of alleged threats the so-called judge had received. (By the way, calling up judges with serious free speech urges on your mind and blogging about it is best done outside the boundaries of the United States – or at least the State in which the judge sits on the bench.)

The tirade is worth reading in its entirety, and I’ve included it below and interspersed highly relevant photos from Homeland and commentary – bracketed in bold. (I’ve used the definitive transcript of the “Judge’s” remarks, prepared by the National Review’s Andrew McCarthy, based on audio recorded in court by the alleged victim, Ernest Perce, and posted on YouTube).

Well, having had the benefit of having spent over two-and-a-half years in a predominantly Muslim country, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Koran here, and I would challenge you, sir, to show me where it says in the Koran that Mohammed arose and walked among the dead.

Your Honor, the evidence is right here.

[Unintelligible.] You misinterpreted things. Before you start mocking someone else’s religion you may want to find out a little bit more about it. That makes you look like a doofus. [Enough with the legalese]

And Mr. Thomas [Elbayomi’s defense lawyer] is correct. In many other Muslim speaking countries – excuse me, in many Arabic speaking countries – call it “Muslim” – something like this is definitely against the law there. In their society, in fact, it could be punishable by death, and it frequently is, in their society. [Objection, relevance. We’re not in “their” #$&%*ing society.]

Here in our society, we have a constitution that gives us many rights, specifically, First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers really intended. [Any cases to cite in support of what you “think”? Didn’t think so]. I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.

Dressed for Legal Success: 'Homeland's' Claire Danes heeds Sharia Judge's Admonition Not to "piss off other people and other cultures."

I don’t think you’re aware, sir, there’s a big difference between how Americans practice Christianity – uh, I understand you’re an atheist. But, see, Islam is not just a religion, it’s their culture, their culture. It’s their very essence, their very being. [Correct Judge, that’s the problem] They pray five times a day towards Mecca. To be a good Muslim, before you die, you have to make a pilgrimage to Mecca unless you are otherwise told you cannot because you are too ill, too elderly, whatever. But you must make the attempt.

Their greetings, “Salaam alaikum,” “Alaikum wa-salaam,” “May God be with you.” Whenever — it is very common — their language, when they’re speaking to each other, it’s very common for them to say, uh, “Allah willing, this will happen.” It is — they are so immersed in it.

Then what you have done is you’ve completely trashed their essence, their being. They find it very, very, very offensive. I’m a Muslim, I find it offensive. F’Im a Muslim, I’d find it offensive. [Unintelligble] aside was very offensive.

But you have that right, but you’re way outside your bounds on First Amendment rights. [And you’re way out of your league on First Amendment scholarship, Judge Doofus. Try reading The Volokh Conspiracy blog.]

This is what — as I said, I spent half my years altogether living in other countries [Just like that blonde Muslim convert in Homeland who rented the pad by the airport with her Saudi boyfriend]. When we go to other countries, it’s not uncommon for people to refer to us as “ugly Americans.” This is why we are referred to as “ugly Americans,” because we’re so concerned about our own rights we don’t care about other people’s rights. As long as we get our say, but we don’t care about the other people’s say. [No judge. It’s because many of us are grossly obese, wear shorts and sneakers to the Louvre, and talk boisterously in fine dining restaurants. On the positive side, we’re considered the word’s best tippers.]

All that aside I’ve got here basically — I don’t want to say, “He said, she said.” But I’ve got two sides of the story that are in conflict with each other. [Had you gone to law school you would have learned that judges often hear cases with conflicting stories.] I understand — I’ve been at a Halloween parade, I understand how noisy it can be, how difficult it can be to get a [unintelligible]. I can’t believe that, if there was this kind of conflict going on in the middle of the street, that somebody didn’t step forward sooner to try and intervene — that the police officer on a bicycle didn’t stop and say, “Hey, let’s break this up.”

Before the end of Season 1, the evidence showed Sgt. Nick Brody from 'Homeland' had turned. The evidence suggests the same about Sharia Judge Mark Martin, the real-life character upon which Brody is based. How else could you be a Judge without going to law school?

[Unintelligible]. You got a witness.

[Unintelligible response. Judge Martin then continues:]

The preponderance of, excuse me, the burden of proof is that the defendant — it must be proven that the defendant did with the intent to harass, annoy or alarm another person — The Commonwealth, whether there was conflict or not — and, yes, he should be took [sic] putting his hands on you. I don’t know — I have your story he did and his story that he did not.

But another part of the element [of the offense charged] is, as Mr. Thomas [the defense lawyer] said, was — “Was the defendant’s intent to harass, annoy or alarm — or was it his intent to try to have the offensive situation negated?” [Huh, “have the offensive situation negated”? Sounds like the Vet’s military euphemisms are showing]

If his intent was to harass, annoy or alarm, I think there would have been a little bit more of an altercation. [No, “more of an altercation” would likely have been an assault; harassment is a less serious charge. This is why judges should go to law school.]Something more substantial as far as testimony going on that there was a conflict. Because there is not, it is not proven to me beyond a reasonable doubt that this defendant is guilty of harassment. Therefore I am going to dismiss the charge.

Judicial incompetence and bias won’t be eliminated by the host of anti-“Sharia law” proposals bandied about by incompetent law makers with their own agendas. We don’t have Sharia Law. We do have lots of incompetent and routinely biased judges running loose of all stripes who wreak legal havoc with less fanfare than Mark W. Martin. We just need judges who will apply our Anglo-American jursprudence as originalists. Requiring they graduate from law school might be a start.

As confirmed to me by the judicial branch almost three months ago, current Colorado Democratic governor Bill Ritter would name any replacements of judges not retained in Tuesday’s election. (See, Article VI, Section 20 of the state constitution). Now that Lawweek ran a story on it today, I finally felt comfortable blogging on it, as so many Republicans told me otherwise despite my having done a thorough email cross-examination of Judicial Branch Public Information Officer, Rob McCallum.

Here’s his reply to my intense questioning back on August 5:

All judges standing for retention are in the midst of a term that expires on Jan. 11, 2011. If a judge is not retained and sits through the end of the term (which is historically the case) the nominating commission will convene following the November election and go through the process to send nominees to the Governor who will then appoint the new judge to the bench beginning on, or after, Jan 11, 2011.

If a judge is not retained by the voters and decides to immediately resign (to my knowledge this has never happened) then the nominating commission would begin its process and would have names to the Governor within 30 days of the judges departure. The Governor would then make the appointment.

In both scenarios it would be Governor Ritter’s appointment. [Ed: Ritter’s term similarly expires on January 11, 2011]

So much for the debate on the importance of the next governor for the current judiciary, right?. Or is it? Sure Ritter is going to appoint some legal losers. He was a terrible DA and loves other terrible DAs for trial court judgeships (but so did Republican Bill Owens), and of course he will try to appoint Dems or legal establishment insiders who might as well be Dems to the Colorado Supreme Court. But voting the bums out now means the replacements only get a provisional two-year term, and are up for retention again then.

As Clear the Bench Colorado Director Matt Arnold frequently pointed out when it looked like Hickenlooper was a sure bet, the judicial branch ain’t easy to change, and it’s best to take it one step at a time. After all, it’s better to get these legal losers out now (Justices Martinez, Bender and Rice ) and have a go at the replacement in two instead of the devils-we-know in 10 years.

And while we’re at it, look carefully at your own judges. If you look at the performance reviews read between the lines, don’t just look at the recommendation or the summary – over 99 percent receive “RETAIN” recommendations. Under the guise of operating a merit system, the Commission on Judicial Performance operates more like the teachers unions – they get a 99 percent “retain” too. So if your local judges sound sketchy in the least, there’s a good chance they’re legal losers too.

We need a reform that grades on a curve. If it’s really about merit, then let’s reform the law to require the Commission give no-retain recommendations to say the bottom 10 percent. This will force the judges out of the world of communist-like equality into a world of at least modest competition . Besides, if the locals love their legal losers so much they are free to vote to retain those bottom-ranked judges.

We also need to make the entire evaluation process more open and transparent. We need a lot of reform, and I’ll go into more about the specifics after the election, but contrary to the straw man arguments brought up by the legal establishment, this reform can easily come within Colorado’s so-called Missouri System of appointment and retention. No one involved in the forefront of the reform movement is advocating straight elections.

Meanwhile, vote down the three Supreme Court justices on the ballot, and urge everyone you know in Larimer County to vote out corrupt, evidence manufacturing district court judges Jolene Blair and Terry Gilmore. Since January, I’ve been all over this pair of legal refuse that caused an innocent man, Tim Masters, to sit in prison for murder for 10 years because of exonerating evidence they withheld, for which they were disciplined, and for which the county and city paid out a total of $10 million to Masters. I’m thrilled that it looks like the voters will spit on the “RETAIN” recommendations cynically handed out by the Commission on Judicial Performance.

After 23 years sitting on the bench of the Colorado Supreme Court , Chief Justice Mary Mullarkey, 66, decided “now was the right time to step down and pursue other interests,” according to a press release from the Colorado Judicial Branch. Chief Juctice Mularkey is one of four justices targeted by Clear the Bench Colorado, for a no-retention vote this November.

The movement stems from votes upholding unconstitutional property tax increases and the so-called dirty dozen tax increases – a result of calling these otherwise TABOR-violating tax increases “fees” or the elimination of “exemptions.” Mularkey is targeted along with three other Colorado Supreme Court justices up for retention vote this November. The other three are Justices Michael Bender, Alex Martinez, and Nancy Rice.

The Supreme Court Nominating Commission later this summer will interview applicants for the upcoming vacancy and nominate three candidates to the governor, who then will appoint a new associate justice. Members of the court will select a new chief justice.

Unfortunately, the governor doing the appointing will still be career prosecutor, and lame-duck gubernatorial disaster, Democrat Bill Ritter. ExPat ExLawyer will be reporting in detail on how to best get an appropriate replacement appointed for Justice Mularkey.

The root of the problem in the Colorado judiciary extends well beyond these four justices. The retention criteria themselves are artificially limited to exclude issues that should be considered before a rubber stamp is given to the voters by the Commission on Judicial Performance. Larimer County District Court judges Jolene Blair and Terry Gilmore committed egregious prosecutorial misconduct in a murder case when they were DAs by withholding and manufacturing evidence. That misconduct resulted in an undisputably innocent man, Tim Masters, going to prison for 10 years, the guilty suspect likely going free, and Larimer County paying a $4.1 million dollar judgment to Masters.

Incredibly, because the misconduct was not proved until Gilmore and Blair were already appointed to the bench, the Commission on Judicial Performance deems it irrelevant to their “retention” recommendations. The misconduct resulted in rare disciplinary action by the Colorado Supreme Court for ethical violations by a prosecutor. Ironically, these two are free to consider a defendant’s entire life history when pronouncing their judgments. I will be devoting a major portion of blogging effort to researching and writing about what needs to be done to make Colorado’s judiciary more accountable to the public.

Updated: Chief Justice Mullarkey’s decision now, more than six months before her actual retirement date has the following logic: All judges up for retention in November must announce in August whether they will stand for retention. Here’s a question. If the Chief can wait until November 30, why not hang on a little over a month more and allow the new Governor to make the appointment?

Larimer County District Court Judges Terry Gilmore and Jolene Blair are the first sitting judges in over 30 years who have been publicly rebuked by the Colorado Supreme Court’s Office of Attorney Regulation. They are up for a Retain or No-Retain vote this November. Back in 1999, when these two were (what else could a judge have been) persecutors–I mean District Attorneys–prosecuting the case of Tim Masters, they not only willfully withheld critical evidence that pointed to Masters’ obvious innocence, they manufactured evidence of their own. They also suborned perjury from a key police witness.

These blatantly unethical activities by judges Terry Gilmore and Jolene Blair directly resulted in Masters being wrongfully convicted of murder. He spent 10 years in prison because of it. Tim Masters won a new trial and DNA evidence proved him innocent. These persecutors were then promoted to judgeships, responsible for the fair handling of felony cases. Phony tough law and order idiots like these two don’t help law and order, and the real killer still runs loose because of them.

Legal scum such as Colorado Judges Terry Gilmore and Jolene Blair who’ve demonstrated no remorse for their manufacture of evidence and subornation of perjury, cannot possibly be trusted to ensure the fair and impartial administration of justice. In fact, they are arguing in a civil suit brough by Masters that as prosecutors they were immune from liability even if they did manufacture it. Huh? Sounds like something’s gotta give.

Judges Blair and Gilmore are nothing less than the Mike Nyfongs of the Rockies. Unfortunately, Colorado’s system of legal discipline is notoriously weak. Just like Nyfong, these two should have been disbarred. But for Colorado, a public reproval is what happens when someone ought to be disbarred–it speaks volumes about their misconduct.

Another weak link in the chain of Colorado’s criminal justice system is the Commission on Judicial Performance, which meticulously rates judges on a huge variety of issues, drawing on questionnaires from attorneys, litigants, jurors, and even judicial staff in deciding whether to recommend a retention or not. Rarely do they recommend a no-retention to the public. But so what, the public is free to get its information from other sources, like the stalwart reporting done by Larimer County’s local newspaper, The Coloradoan.

I spoke a while back with the head of the Colorado Commission on Judicial Performance, and unfortunately the scope of their recommendation does not include conduct committed before they were appointed to the bench–even if that misconduct may still be an ongoing problem and the disciplined judges while on the bench, have made no apologies for their misconduct. Quite the contrary, they provided alibi after alibi, just like a scumbag criminal would, to defend their indefensible actions.

Lack of remorse generally causes judges to sentence defendants to the max. Yet hypocrite judges Gilmore and Blair think they deserve life tenure in jobs that they are ethically unqualified to hold. A complete compendium of the Coloradoan’s news articles of the saga of this innocent man and what followed, is contained here.

Despite a history of ethics violations and relatively scant experience as a lawyer, in 2008 Elizabeth Oldham was elected head District Attorney for Colorado’s 14th Judicial District, a geographically sprawling district that encompasses Routt, Grand and Moffat counties, and includes the ski resort of Steamboat Springs. It would not be unfair to conclude if more information about her ethical history had been reported to the public and to the Office of Attorney Regulation, the result might have turned out differently.

Why is that? I should first point out that the information about Oldham’s career at the 14th and why she was forced to leave there for several years and join Mark Hurlbert’s 5th District Attorney’s office, is not disputed at all by Oldham. She sat down during the campaign for a lengthy interview with Steamboat Springs Local publisher, Thomas Reuter. In the original post, I linked to the URL for that article, but under what Reuter described to me as local pressure, he removed that URL from his website a few weeks ago. When I discovered the link was no longer current, I contacted Reuter and he sent me a downloaded Pdf of the article, which I have now embedded at the bottom of this post.

In that interview, Oldham admitted to Reuter that she’d committed serious misconduct while a Deputy District Attorney in the 14th Judicial District when she, married herself, embarked on an affair with her married-with-children boss, the head DA. His name is mentioned in the attached article, but is misspelled. It should have an “a” where it has an “o”. While Oldham’s marriage remained intact, it broke up the former head DA’s marriage and devastated his wife and children.

As usual, I have done independent research, and recently spoke with this now-Senior Judge’s former wife. Seven years later, she and her family are still devastated. Because of this, I have removed the name of her former husband and Oldham paramour from this post. A Senior Judge, in addition to collecting his PERA pension at a far younger age than most of us get to retire, picks up an additional 20 percent for filling in for judges on vacations and conducting overflow work. I hope the majority of it goes to his family.

The affair was a violation of the DA’s office ethics rules for reasons that should be obvious. Each attorney is sworn to uphold state ethics rules, and many rules apply to DAs that don’t apply to private attorneys, because under the law, prosecutors are sworn to seek justice, even if that means losing a case. By contrast, defense attorneys opposing them in court, are bound by ethics rules, but are free to defend the guilty and in fact are required to use all legal means to vigrously defend their clients.

In practice, though, many DAs pursue their prosecutions seeking only to win, justice be damned. Sometimes the DAs just want notches on their belts, sometimes they are settling personal scores with lawyers or defendants they don’t like. A boss might overlook ethical violations by his mistress, he might encourage her to cover up his own ethical violations. He might be threatened if he left the mistress against her desires with disclosure of the affair to the public or his wife.

In addition, as Reuter points out, a DA is an officer of the court and representations they make will generally be taken at face value by judges in what is called a “proffer” — a statement of alleged facts made without swearing under oath, which serves to immunize the DA from potential perjury if they lie. Their entire jobs involve proof of the truth. In theory.

Thus, if someone goes around lying to her husband or his wife, to co-workers, to friends on a daily basis, it doesn’t take an imaginative leap to conclude such an individual is not particularly trustworthy in general. The wife of the then-head 14th District Attorney was a clerk of the court. She came into contact with Oldham every day and thought she was her friend, all the while being betrayed. (And she denies Reuter’s report that she spread news of the affair around the court house).

That’s why such conduct has brought down the careers of politicians who we don’t even expect to be telling the truth routinely, such as presidential candidate John Edwards, South Carolina Governor Mark Sanford, or New York Attorney General Elliot Spitzer. The media coverup of John Edwards’ infidelities and lies could well have changed the outcome of the presidential election in 2008, as his continued campaigning while the media kept his secrets arguably took a lot of votes away from Hillary Clinton.

Oldham’s series of ethical violations was no big secret in legal circles, but it was from the general public and litigants in Hurlbert’s 5th Judicial District after he brought her aboard despite not only ethical violations of 14th District policies, but his own appropriate policies as well. He wrote me today, March 29, 2010, he would hire her back had he the opportunity. Hurlbert did not deny the ethics violations (and how in the small mountain communities of DAs and judges could he or local judges not have known). In addition, he has failed to report other ethics violations by her as required by the Office of Attorney Regulation.

And just when one would think all this legal hypocrisy couldnt get any worse, the former 14th District DA was appointed a District Court Judge by former-governor Bill Owens. This left Ms. Oldham with an obvious conflict of interest problem, as she could not ethically have any of her cases adjudicated before him. And akin to all the bad cops that get kicked out of one department and then, behind the backs of the public who pay them, get jobs in a new and unsuspecting town or suburb, Oldham moved to Summit County. Mark Hurlbert ultimately promoted her to his third in command, Chief Deputy. Hurlbert, facing term limits he unsuccessfully tried to extend, is now a candidate for State Senate District 16.

The real kick is the reasons Owens gave for the appointment of an ethically challenged District Attorney to a judgeship. Owens said: “During the course of the selection process I heard from a wide range of members of the community about [his] courage, integrity and excellent legal skills. These qualities combined with his exceptional intellect will serve him well as District Court judge.” I guess Bill Owens had a very different definition of “integrity” than most Coloradans.